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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33281
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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need help with a couple of question that require answers to

Customer Question

Hi, my wife and I are separating and currently have a joint tenancy with the local council. We would like to change the tenancy solely into her name.
We have been advised by the council that we cannot transfer our joint tenancy into her name. They say we have to cancel our tenancy and she has to apply for a new one to stay in the house we are living in however due to regulations and no longer having two dependent children she is unlikely to be offered the house we have now and would most likely be offered something smaller in size with less bedrooms.
We have learned from speaking to the charity Shelter that a court can order this to be done so we wish to apply to the court for the tenancy to be transferred solely into her name without her losing the assured tenancy that we currently have.
We have downloaded the form D50B and are unsure of what to fill in the boxes that have the following questions as indicated in bold text:

'On the hearing of an application by' - we assume this to be the applicant? If not, we do not know what to put in this box.

For an order in the following terms: - What are the terms? Are they the transfer of a tenancy under section 53 of, and Schedule 7 to, the 1996 Act? If not, we do not know what to put in this box.

'The court has jurisdiction on the following basis to deal with these procedures' - We do not know what to put in this box.

Thanks.

Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question I will do my best to assist.
1. Yes the name you need is that of your wife
2. Correct that is exactly what you put in
3. "The parties were married and the tenancy is a relevant tenancy
The actual schedule is set out here
http://www.legislation.gov.uk/ukpga/1996/27/schedule/7
I hope that this is of assistance but please let me know if you need further clarification
Claire
Customer: replied 3 years ago.

Thank you.
Upon looking at the schedule you sent the link for I am unsure if my wife and I can apply for this.


I read two sections of it and took it to mean we need to be judicially separated or divorced before the court will grant an order. Being judicially separated costs the same and takes just as long. It is generally used for people whose religion prevent them from getting divorced I think.

We currently reside in the same house and have decided that we are going to separate and I am going to move out but do not want to do this if there is a risk that my family will potentially have to leave the family home. Also, I do not want to have two tenancies when I find an alternative place to live.
Is it possible to get one of these tenancy transfer orders from the court if we haven't yet applied for a divorce? Or is it possible to get a combined order for judicial separation and tenancy transfer if that is applicable to us?

Expert:  Clare replied 3 years ago.
Hi
It is more usual and indeed easier to obtain an order for the Transfer of the tenancy within divorce proceedings.
May I ask why you do not wish to do this.
It will not effect your ability to get a private tenancy immediately and your leaving will not effect the under occupancy position with regard to the property which should not be a problem unless your wife intends to apply for housing benefit?
Claire
Customer: replied 3 years ago.

Hi,
I am on a low income as is my wife and we currently receive housing benefit so if I move out and need to apply for benefit I would not be entitled if I still had this tenancy. Also, I will be sharing residency of my daughter so if I can get the current tenancy transferred to my wife, in theory as the tenant she could ask me to leave and I would effectively be homeless and could apply to the council for assistance with housing?
I assume if I were to make myself homeless this would not be possible?

Expert:  Clare replied 3 years ago.
Hi
How old is your daughter and how will the residence being shared bewteen you?
Claire
Customer: replied 3 years ago.

She is 8 and we'll share her equally so she'll come and stay with me for part of the week every week. My wife's other daughter is 19 and she'll also come and stay with me from time to time as I have brought her up since she was 4.

Expert:  Clare replied 3 years ago.
Hi
I am afraid that you have misunderstood the system on many levels.
Even if you were still on the tenancy of the matrimonial home this woudl not necessarily exclude you from receiving Housing Benefit for another property IF you were financially eligible
Equally if the tenancy is in your wife's sole name she could not force you to leave the property unless you were violent or you were divorced as you have matrimonial home rights to live in the property - and if you leave you will be seen as having made yourself voluntarily homeless .
In any event you are not a priority housing need unless you have a residence order for your child.
If you had such an order the council would expect you to apply to the court for the right to remain in the property and have the tenancy transferred into your name
Claire
Customer: replied 3 years ago.

Perhaps I need to make our situation a little clearer.
We wish to separate amicably before the bitterness and resentment begins. We want to share the care of my daughter so are happy to have joint responsibility for her.
I am still living in the matrimonial home but wish to leave and start a new life somewhere else where my daughter can stay with me as and when my wife and I have agreed. Ideally I would like to be eligible for being housed by the council. I was under the impression that the best course of action was firstly to take myself off of the joint tenancy that my wife and I share at which point she could then ask me to leave thus making me homeless. I simply want to leave and be eligible for rehousing by the council and we both thought that this was the best way to achieve that. We both work and have always paid the rent on time and been model tenants. Can you suggest the best course of action to achieve what we both want with the minimum of delay and cost?
Thanks.

Expert:  Clare replied 3 years ago.
Hi
I am sorry but as I told you this simply will not work as you will not be eligible for rehousing.
The only real option is to identify a property you wish to rent and claim housing benefit if you are financially eligible to do so
You can discuss the matter with your local housing support
http://england.shelter.org.uk/get_advice
Who should be able to assist you
Claire

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